PORTES DEL RIO v. TSOUKARIS et al

Filing 11

OPINION. Signed by Judge Kevin McNulty on 4/4/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LUIS DAVID PORTES DEL RIO,
Petitioner,

Civ. No. 16-8721 (KM)

V.

CHARLES GREEN,

OPINION

Respondent.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

The petitioner, Luis David Portes Del Rio, is an immigration detainee currently lodged at
the Essex County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2241, seeking release from detention.

The government filed a motion to dismiss the original habeas petition. Thereafter, petitioner filed
an amended habeas petition. I agree with the government that the original habeas petition
merited dismissal. The amended habeas petition, however, entitles the petitioner to relief, and
this Court will order that a bond hearing take place before an Immigration Judge (“IJ”).
II.

BACKGROUND

Petitioner is a native of the Dominican Republic. He entered the United States in 1997.
Petitioner claims he came to the United States to live with his paternal grandmother. Petitioner
states that he is a naturalized United States citizen.
In 2015, petitioner was convicted in New Jersey of theft by unlawful taking, burglary,
attempted burglary, and resisting arrest. On or about May 25, 2016, petitioner was placed into
immigration detention based upon his conviction of two crimes involving moral turpitude.

Petitioner’s immigration proceedings appear to be ongoing. The government states that a
hearing before the JJ was scheduled for March 13, 2017, so that petitioner could present evidence
that he was legally adopted by his grandmother and present any additional arguments regarding
eligibility for cancellation of removal. (See Dkt. No. 7 at p.4) Thus, petitioner’s citizenship is
clearly at issue in his immigration proceedings. To date, neither party has updated this Court
with an update on petitioner’s immigration proceedings. On the record before me, I must find
that petitioner is in pre-removal status. See 8 C.F.R.

§

124 1.1(c) (stating that an order of removal

from an IJ becomes final “upon expiration of the time allotted for an appeal if the respondent
does not file an appeal within that time”); see also 8 C.F.R.

§

1241.1(a) (stating that an order of

removal from an Immigration Judge becomes final “[u]pon dismissal of an appeal by the Board
of Immigration Appeals”).
As petitioner’s immigration proceedings proceeded, he filed this federal habeas petition
in November, 2016. In his original habeas petition, petitioner argues that he is entitled to be
released from immigration detention because he is a United States citizen. Petitioner claims that
this citizenship is derived from his paternal grandmother, who impliedly adopted him. The
government filed motion to dismiss that original habeas petition in January, 2017. (See Dkt. No.
7) That response contains three main arguments. First, the government contends that this Court
lacks jurisdiction to consider petitioner’s claims of citizenship. Second, the government claims
that even if this Court has jurisdiction to consider such claims, petitioner failed to exhaust
administrative remedies. Finally, the government contends that petitioner’s citizenship claim
lacks merit.
On the same day that this Court received the government’s motion to dismiss the original
habeas petition, petitioner filed an amended habeas petition. That petition also challenges his

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immigration detention, but not because of petitioner’s claim of citizenship. Instead, the amended
petition argues that the petitioner is entitled to a bond hearing because he has been detatined for
over ten months. On February 9, 2017, the government filed a response to the amended habeas
petition. (See Dkt. No. 9) The government does not oppose the entry of an order that a bond
hearing take place before an IJ.
On February 21, 2017, this Court received a reply brief from petitioner in support of his
habeas petitions. In that brief, petitioner continues to allege that he is entitled to habeas relief in
light of his purported United States citizenship. This brief makes it clear that the amended
petition does not supersede the original petition: i.e., petitioner has not abandoned his the claim
based on U.S. citizenship he raised in his original habeas petition. I therefore discuss both
petitions.
III.

DISCUSSION

Petitioner’s original and amended habeas petitions raise two separate arguments related
to his continued immigration detention. In the original habeas petition, petitioner argues that he
is entitled to be released from immigration detention because he is a United States citizen. In the
amended habeas petition, petitioner argues that he is entitled to a bond hearing based upon the
length of time he has already been in immigration detention, now over ten months.
A. U.S. Citizenship
Petitioner argues in his original habeas petition that he should be released from
immigration detention because he is a United States citizen. He states that he is a United States
citizen based upon the implied adoption of him by his grandmother, who is a U.S. citizen. (See
Dkt. No. 1 at p. 4) The government contends that this Court lacks jurisdiction to consider this
claim as it is inextricably tied to the question of petitioner’s removability. Nevertheless, relying

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on Flores-Torres v. Mu/casey, 548 F.3d 708 (9th Cir. 2008), petitioner contends that this Court
has jurisdiction to consider his claim.
In Flores- Torres, a petitioner filed a habeas corpus petition in the district court seeking
his release from immigration detention, arguing (inter alia) that he was a United States citizen.
See Ed. at 710. The district court determined that it lacked jurisdiction to consider petitioner’s
citizenship claim. See Ed. The issue before the Ninth Circuit was whether 8 U.S.C.

§

1252

precluded the district court from exercising jurisdiction. Three subsections of section 1252 are
relevant.
Section 1252(a)(5) states as follows:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such title,
a petition for review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive means
for judicial review of an order of removal entered or issued under
any provision of this chapter, except as provided in subsection (e).
For purposes of this chapter, in every provision that limits or
eliminates judicial review or jurisdiction to review, the terms
“judicial review” and “jurisdiction to review” include habeas
corpus review pursuant to section 2241 of Title 28, or any other
habeas corpus provision, sections 1361 and 1651 of such title, and
review pursuant to any other provision of law (statutory or
nonstatutory).
8 U.S.C.

§

1252(a)(5).

Section 1252(b)(5) states as follows:
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United
States and the court of appeals finds from the
pleadings and affidavits that no genuine issue of
material fact about the petitioner’s nationality is
presented, the court shall decide the nationality
claim.
(B) Transfer if issue of fact

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If the petitioner claims to be a national of the United
States and the court of appeals finds that a genuine
issue of material fact about the petitioner’s
nationality is presented, the court shall transfer the
proceeding to the district court of the United States
for the judicial district in which the petitioner
resides for a new hearing on the nationality claim
and a decision on that claim as if an action had been
brought in the district court under section 2201 of
Title 28.
(C) Limitation on determination
The petitioner may have such nationality claim
decided only as provided in this paragraph.
8 U.S.C.

§

1252(b)(5).

Finally, Section 1252(b)(9) states as follows:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall
be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall
have jurisdiction, by habeas corpus under section 2241 of Title 28
or any other habeas corpus provision, by section 1361 or 1651 of
such title, or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of law or
fact.
8 U.S.C.

§

1252(b)(9).

The Ninth Circuit in Flores-Torres determined that section 1252 did not preclude the
district court from exercising jurisdiction over the habeas petition. The habeas petition, that
Court held, did not challenge any final order of removal, but instead challenged the petitioner’s
detention prior to the issuance of any order. See Flores-Torres, 548 F.3d at 711. In so holding,
the Ninth Circuit was guided by “the well-established principle that we require ‘a particularly
clear statement’ of intent from Congress before we find habeas review foreclosed.” Flores
Torres, 548 F.3d at 711 (citing Demore v. Kim, 538 U.S. 510, 517 (2003); iNS. v. Si. Cyr, 533
U.S. 289, 298-99 (2001)). Ultimately, the Ninth Circuit stated its holding as follows:
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Torres asserts that his detention is unlawful because he is a citizenthat he automatically derived citizenship from his mother under the
former 8 U.S.C. § 1432 when he was seventeen because he was
born out of wedlock and was not legitimated by his father. His
claim is non-frivolous on its face. The government authority to
s
t
detain Torres appears to depend on the question of whether he was
legitimated by his father under El Salvadoran law. The district
court is the appropriate forum to resolve such a claim. We hold
that Torres does not have to wait until his removal proceedings are
completed and a final removal order is issued before he can secure
habeas review of his citizenship claim and of his contention that he
may not be detained under the INA.
Flores-Torres, 548 F.3d at 713.
As a Ninth Circuit decision, of course Flores-Torres is not controlling authority on this
Court. Nevertheless, I consider it for its persuasive value. I note as well that a panel of the United
States Court of Appeals for the Third Circuit (albeit in an unpublished decision) has cited to
Flores-Torres approvingly. See Olopade v. Att ‘y Gen. of United States, 565 F. App’x 71, 73 (3d
Cir. 2014) (“the [REAL ID] Act did not specifically preclude habeas review over claims of
citizenship raised outside of the context of a challenge to a removal order.”) (citing Flores
Torres, 548 F.3d 712 n.6).
Flores-Torres and Olopade persuade to consider, at least arguendo, that I am not barred
from asserting jurisdiction over the petitioner’s citizenship claim, at least insofar as it bears on
his request to be released from detention, as opposed to the ultimate issue of removability. I
consider, however, whether I should exercise such jurisdiction. The doctrine of prudential
exhaustion suggests to me that I should not.
The Third Circuit has explained the doctrine of prudential exhaustion as follows:
In cases where exhaustion is not required, we have held that the
decision of whether to require exhaustion “is a matter of sound
judicial discretion,” which should “be guided by rationales
advanced for the judicially created exhaustion doctrine.” Cerro
Metal Products v. Marshall, 620 F.2d 964, 970 (3d Cir. 1980). The
rationales or purposes for requiring exhaustion are as follows: (1)
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“promot[ing] administrative efficiency by preventing premature
interference with the agency processes”; (2) “respect[ingj
executive autonomy by allowing an agency the opportunity to
correct its own errors”; (3) “facilitat[ing] judicial review by
affording courts the benefits of the agency’s experience and
expertise”; and (4) “serv[ing] judicial economy by having the
agency or other tribunal, rather than the district court, compile a
factual record.” Id. (internal quotation marks omitted); see Wilson
v. MJ7M Inc., 475 F.3d 166, 173 (3d Cir. 2007) (“{E]xhaustion of
administrative remedies serves to promote administrative
efficiency, respect executive autonomy by allowing an agency the
opportunity to correct its own errors, provide courts with the
benefit of an agency’s expertise, and serve judicial economy by
having the agency compile the factual record.” (internal quotation
marks and alterations omitted)).
We have referred to judicially created exhaustion as prudential
exhaustion and have explained that “[b]ecause of its nature,
prudential exhaustion can be bypassed under certain
circumstances, including waiver, estoppel, tolling or futility.”
Wilson, 475 F.3d at 174; see also Facchiano v. U& Dep’t of
Labor, 859 F.2d 1163, 1167—68 (3d Cir. 1988) (excusing
exhaustion when (1) “the challenged agency action presents a clear
and unambiguous violation of statutory or constitutional rights”;
(2) “resort to administrative procedures is clearly shown to be
inadequate to prevent irreparable injury”; and (3) requiring
exhaustion is “futile”). “However, merely because exhaustion
requirements are prudential does not mean that they are without
teeth. Even prudential exhaustion requirements will only be
excused in a narrow set of circumstances.” Wilson, 475 F.3d at
175. In particular, “[un order to invoke the futility exception to
exhaustion, a party must ‘provide a clear showing’ of futility
before the District Court.” Id. (quoting D’Amico v. CBS Corp., 297
F.3d 287, 293 (3d Cir.2002)).
N Michigan Hosps., Inc. v. Health Net Fed. Servs., LLC, 344 F. App’x 731, 738 (3d Cir. 2009).
In this case, requiring petitioner to exhaust his claims of citizenship first before the IJ
and, if he loses, before the BIA, would prevent premature interference with the agency process,
allow the agency to correct any errors if they are made directly, facilitate judicial review by
having the citizenship issue decided by the agency with the expertise and experience into the

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issues, and promote judicial economy. Furthermore, I do not find that any of the exceptions of
prudential exhaustion listed above apply.
“Prudential exhaustion ‘is generally judiciafly created.” Metropolitan LUè Ins. Co. v.
Price, 501 F.3d 271, 279 (3d Cir, 2007) (quoting Wilson, 475 F.3d at 174). It permits a district
court to refrain from exercising jurisdiction in a limited class of cases. For the reasons stated
above, I believe that this is such a case. At least one district court within the Ninth Circuit (where
Flores-Torres is controlling) has so held. See Pianka v. De Rosa, No. 14-2179, 2016 WL
7383333 (D. Ariz. Oct. 13, 2016), report and recommendation adopted, 2016 WL 73720909 (D.
Ariz. Dec. 20, 2016). Discussing Flores-Torres, the District of Arizona stated as follows:
Flores-Torres does not require the Court to exercise jurisdiction
over Petitioner’s claim—the Court can exercise its discretion to
decline jurisdiction and require prudential exhaustion before
reaching the merits. See, e.g., Puga v. Chertoff 488 F.3d 812, 815
(9th Cir. 2007); Tapia v. DeRosa, 2013 WL 6512489 (D. Ariz.
Dec. 11, 2013) (dismissing petitioner’s writ of habeas corpus under
the doctrine of prudential exhaustion); Derboghossian v. DeRosa,
2015 WL 403916 (D. Ariz. Jan. 29, 2015) (discussing prudential
exhaustion and denying petitioner’s habeas petition on that basis
that petitioner did not meet the statutory requirements for
citizenship). Courts may require prudential exhaustion if”(1)
agency expertise makes agency consideration necessary to
generate a proper record and reach a proper decision; (2) relaxation
of the requirement would encourage the deliberate bypass of the
administrative scheme; and (3) administrative review is likely to
allow the agency to correct its own mistakes and to preclude the
need for judicial review.” Puga, 488 F.3d at 815 (quoting Noriega
Lopez v. Ashcrofl, 335 F.3d 874, 881 (9th Cir. 2003)).
Considering the above criteria, the Court finds that Petitioner
should be required to exhaust his administrative remedies before
seeking habeas relief. Here, Petitioner’s citizenship claim is
directly intertwined with his removal proceedings. According to
the record, Petitioner has had hearings on his claim to citizenship
before the IJ, who has previously issued an “exhaustive written
decision after reviewing nearly 50 exhibits,” and, most recently,
the removal proceedings are still pending before the BIA. Notably,
Petitioner is represented by counsel in the administrative
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proceedings, whereas he is unrepresented in the instant matter.
This court would not be an adequate substitute lbr the expertise of
the administrative agency in reviewing Petitioner’s claim to
citizenship.
Furthermore, if the BIA were to affirm the IJ’s ruling, Petitioner
could then file a petition for review in the Ninth Circuit Court of
Appeals. If that court found genuine issues of material fact about
Petitioner’s nationality, it would then refer the case to the district
court for a new hearing on the nationality claim. See 8 U.S.C. §
1 252(b)(5)(B). Thus, Petitioner will not be deprived of due
process.
Additionally, relaxing the requirement of administrative
exhaustion would encourage the deliberate bypass of the
administrative scheme, in that anyone with a citizenship claim
could proceed directly to federal court in a habeas corpus
proceeding without any administrative review of the claim. Yet,
requiring administrative exhaustion would allow the agency to
correct any potential mistakes on its own, thereby precluding the
need for judicial review.
Pianka, 2016 WL 7383333, at *2_3.
Assuming that the jurisdictional holding of Flores-Torres applies, I nevertheless withhold
consideration based on the prudential standing doctrine, essentially for the reasons stated in
Pianka. To those reasons, I add one more. If I were to consider the citizenship claim, I could do
so only in connection with the petitioner’s claim for release from detention—even under Flores
Torres, I have no jurisdiction to consider the citizenship claim in connection with the ultimate
issue of removability. To consider it, then, would segment the issue awkwardly, inserting the
court at a phase where the agency should be applying its expertise in matters of citizenship. More
importantly, as to issue of release from detention, the petitioner has a far more direct avenue of
relief: a bond hearing before the IJ. He has sought that relief in his amended petition, and the
government does not oppose it.

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Therefore, the government’s motion to dismiss the original habeas petition will be
granted, without prejudice, based on prudential exhaustion, and 1 will proceed to consider the
petitioner’s request for a bond hearing.
B. Bond Hearing based on Length of Detention
In his amended habeas petition, petitioner contests his current immigration detention
based on its protracted length, currently about ten months. The Attorney General has the
authority to detain aliens in removal proceedings before the issuance of a final order of removal.
This period of detention is known as the “pre-removal” period. Detention of an alien in the pre
removal period is governed by Section 1226 of Title 8 of the United States Code. Section
1226(a) permits the Attorney General to detain or release an alien pending a decision on whether
the alien is to be removed from the United States:
On a warrant issued by the Attorney General, an alien may be
arrested and detained pending a decision on whether the alien is to
be removed from the United States. Except as provided in
subsection (c) of this section and pending such decision, the
Attorney General—
(1) may continue to detain the arrested alien; and
(2) may release the alien on—
(A) bond of at least $1,500 with security approved by, and
containing conditions prescribed by, the Attorney General;
(B) conditional parole;
8 U.S.C.

§ 1226(a). “Except as provided in subsection (c)” is included because, under Section

1226(c), certain criminal aliens are subject to mandatory pre-removal detention:
The Attorney General shall take into custody any alien who—
(A) is inadmissible by reason of having committed any offense
covered in section 11 82(a)(2) of this title,
(B) is deportable by reason of having committed any offense
covered in section 1 227(a)(2)(a)(ii), (A)(iii), (B), (C), or (D) of this
title,
(C) is deportable under section l227(a)(2)(A)(i) of this title on the
basis of an offense for which the alien has been sentence to a term
of imprisonment of at least 1 year, or
I0

(D) is inadmissible under section 11 82(a)(3)(B) of this title or
deportable under section 1 227(a)(4)(B) of this title,
when the alien is released, without regard to whether the alien is
release on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again for
the same offense.
8 U.S.C.

§

1226(c)(1).

In Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d

dr. 2011), the United States Court of

Appeals for the Third Circuit established a framework for analyzing the permissibility of pre
removal detention:
[Title 8, United States Code, Section] 1226(c) contains an implicit
limitation on reasonableness: the statute authorizes only mandatory
detention that is reasonable in length. After that, § 1226(c) yields
to the constitutional requirement that there be a further,
individualized, inquiry into whether continued detention is
necessary to cany out the statute’s purpose.... Should the length of
[an alien’s] detention become unreasonable, the Government must
justify its continued authority to detain him at a hearing at which it
bears the burden of proof.
656 F.3d at 235. Diop did not state a specific length of pre-removal-order detention beyond
which a petitioner would be entitled to a bond hearing. See

id

at 234; see ahw Carter v. Aviles,

No. 13—3607, 2014 WL 348257, at *3 (D.N.J. Jan. 30, 2014) (“[T]he Third Circuit has not set a
‘universal point’ when mandatory detention under

§

1226(c) is unreasonable.”) (citing Leslie v.

Attorney Gen., 678 F.3d 265, 270—71 (3d Cir.2012)); Barcelona v. Napolitano, No. 12—7494,
2013 WL 6188478, at *1 (D.N.J. Nov. 26, 2013) (“The Court of Appeals in Diop declined to
adopt a rule that a hearing was required after a certain fixed amount of time in pre-removal
detention.”) (citation omitted). Instead, the Third Circuit noted that “[r]easonableness, by its very
nature, is a fact-dependent inquiry requiring an assessment of all of the circumstances of a
particular case.” Diop, 656 F.3d at 234. A reasonableness determination “must take into account
a given individual detainee’s need for more or less time, as well as the exigencies of a particular
11

case.” Id. However, “the constiflitional case for continued detention without inquiry into its
necessity becomes more and more suspect as detention continues past [certain] thresholds.”
Chavez—Alvarez v. Warden York Cnly. Prison, 783 F.3d 469, 474 (3d Cir. 2015) (quoting Diop,
656 F.3d at 232, 234). Indeed, in Chavez—Alvarez, the Third Circuit noted with respect to the
circumstances of that particular case that sometime after six months, and certainly within a year,
the burden to the petitioner’s liberties would outweigh any justification to detain the petitioner
without a bond hearing. See id. at 478. A petitioner’s bad faith, too, has at least the potential to
influence the determination of whether a bond hearing should be ordered. See Chavez-Alvarez,
783 F.3d at 476 (“Because we conclude that Chavez-Alvarez did not act in bad faith, we do not
need to decide here whether an alien’s delay tactics should preclude a bond hearing.”). In the
pre-removal context under Diop and Chavez-Alvarez, the proper relief is to order a bond hearing
before the Immigration Judge, not to order the petitioner released from immigration detention.
See Morrison v. Elwood, No. 12-4649, 2013 WL 323340, at *1 (D.N.J. Jan.28, 2013) (“This
Court’s power to entertain habeas applications ensues from the narrowly-tailored mandate of 28
U.S.C.

§

2241, which

—

with respect to the claims raised by pre-removal order alien detainee’s

—

allows relief limited to a directive of a bond hearing.”) (citing Diop, 656 F.3d 221).
In this case, petitioner has been detained pursuant to

§

1226(c) for over ten months. The

government concedes at this point that it would be appropriate for this Court to order that a bond
hearing be held by an IJ in accord with Chavez-Alvarez. In light of the length of time petitioner
has been in immigration detention, the lack of any evidence of bad faith on petitioner’s part, and
the government’s consent, this Court will grant the habeas petition on this issue and direct that an
IJ conduct a bond hearing within 14 days.

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IV.

CONCLUSION

For the foregoing reasons, respondent’s motion to dismiss the original habeas petition
will be granted due to lack of exhaustion. However, petitioner’s claim in his amended habeas
petition that he is entitled to a bond hearing before an IJ pursuant to Diop and Chavez-Alvarez is
granted. An appropriate order will be entered.

)
DATED: April 4,2017
KEVIN MCNUL
United States District Judge

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